Eric Holder’s Battle Against Gerrymandering

The former Attorney General Eric Holder warns Democrats not to be overconfident following their triumph in Virginia’s elections.

Photograph by Andrew Harnik / AP

On November 7th, in Washington, D.C., after delivering a speech to the
Campaign for the Fair Sentencing of Youth, Eric Holder grabbed his
Blackberry in search of results from the Virginia elections. As
the former Attorney General scrolled backward through a long e-mail
thread, he quickly learned just how stunning a night it had been for the
Democrats. He also understood that, after this triumph, it might be a
little harder to keep his party focussed on gerrymandering.

“The system didn’t become more fair as a result of what happened last
night,” Holder told me the next day. “The system appears to be more
fair in spite of the reality that those Democratic candidates faced. The
job that I have is to make sure people don’t become complacent.”

Holder has spent the past year tackling the once hopeless task of making
redistricting sexy. He leads the National Democratic Redistricting
Committee, and its charge is nothing less than saving the Party’s
prospects for the next decade. Big donors need to be convinced that
state legislative races matter as much as the Presidency; congressional
leaders, desperate to retake the House in 2018, need to recognize that
long-term down-ballot success is crucial to unlocking future majorities.
These are not easy arguments to pursue with politicians who are narrowly
focussed on their next election. It’s even harder when they believe that
an electoral wave—one like last Tuesday’s—rather than sacrifice,
compromise, and planning, will save them.

“Their professional lives are going to be a little less certain,” Holder
said. “But Democrats can’t go through another decade like the decade we
are in now. In another decade, Republicans could solidify this in such a
way that, well, you’d be talking about such structural changes that I’m
not sure we could overcome even when you get to 2031.”

Democrats slumbered through redistricting in 2010, but they’re awake
now. Their snooze, however, coincided with an audacious Republican
strategy called REDMAP, short for the Redistricting Majority Project.
Republicans targeted control of state legislatures, with an eye toward
dominating redistricting of state legislatures and U.S. House seats.
They fought especially hard in battleground states that were likely to
gain or lose a member of Congress in the decennial post-census
reapportionment.

In 2008, Democrats held nearly sixty per cent of state legislative
chambers. Now Republicans control almost seventy per cent. Democrats
have not flipped a congressional seat blue all decade in ostensible
swing states such as North Carolina, Michigan, Ohio, Pennsylvania, and
Wisconsin. Those states are currently sending a total of forty-eight
Republicans and twenty Democrats to D.C. During the Obama era, Democrats
also bled nearly a thousand state legislative seats nationwide. They
hold fewer than forty per cent of the lower-house seats in four of those
five crucial purplish states. The exception is Michigan, where Democrats
have gained more aggregate state House votes than Republicans in each of
the last three statewide cycles, but can’t break past forty-two per cent
of the seats.

These state legislative gerrymanders have proven so durable that
Democrats need to elect governors simply to have a seat at the table
when new maps are drawn in 2021. Virginia provided a first dry run,
before a full slate of crucial governors’ races next year in Michigan,
Pennsylvania, Wisconsin, Ohio, and Florida.

In speeches before multimillionaire donors and in countless e-mails
seeking as little as five dollars from the grassroots, Holder contended
that Democrats needed to elect Ralph Northam governor in Virginia, over the
Republican Ed Gillespie, so that the Party could veto any extreme partisan
maps drawn by a G.O.P. legislature after the 2020 census. The N.D.R.C.
poured $1.2 million into Northam’s coffers, its biggest investment by
far.

Since Gillespie is a longtime Washington lobbyist who designed the
G.O.P.’s 2010 redistricting strategy, Northam’s victory was that much
more satisfying. But then the gerrymandered House of
Delegates—controlled 66–34 by the Republicans at the beginning of the
night—suddenly appeared to be in play. Democrats have gained at least fifteen
seats. If Republicans hang on to their leads in three districts awaiting
recounts, they will eke out a 51–49 majority. “To have that kind of a
swing on the gerrymandered map was breathtaking,” Holder said.

The G.O.P. gerrymander would make the difference: Northam carried
Virginia by nine percentage points, and Democratic House of Delegates
candidates statewide also outpolled Republicans by nine points—in other
words, it required nearly a double-digit Democratic win to approach
parity. “It’s a wave election just to get to fifty-fifty,” Holder said.
“We can’t lose sight of that . . . With fair maps, with fair lines, you
would have expected Democrats would’ve done far better than they did.”

For these reasons and more, Holder wants Democrats to guard against
overconfidence. As he watched the Democratic gains in Virginia’s House
of Delegates last week, however, he also wondered how a dramatic
electoral upset might affect Supreme Court Justices weighing Gill v.
Whitford, the crucial Wisconsin case that could lead to the first-ever
constitutional standard to rein in partisan gerrymandering. That case is
centered around the state-assembly districts that Republicans drew in
2011. Those lines proved so friendly to Republicans that, in 2012,
Democratic assembly candidates earned a hundred and seventy-four thousand more votes than
Republicans, but the G.O.P. won sixty of the ninety-nine seats.

In oral arguments last month, conservative Justices suggested that there
is no need for the Court to involve itself with partisan gerrymandering,
because voters are always capable of toppling even extreme lines at the
ballot box. Paul Smith, representing the Wisconsin voters protesting the
maps, vehemently disagreed. He told the Court that “this map is never
going to flip over. The evidence is unequivocal that the Democrats would
have to have an earthquake of unprecedented proportions to even have a
chance to get up to fifty votes out of ninety-nine.”

Chief Justice John Roberts, however, reminded Smith that a lawyer made a
similar argument to the Court a decade earlier, when partisan
gerrymandering last appeared before the Justices. A few days later, the
Democrats flipped Pennsylvania. “They won every single race,” Roberts
said. “Predicting on the basis of the statistics that are before us has
been a very hazardous enterprise.”

Holder recognized that the Virginia results might persuade conservatives
on the Court—and newly hopeful Democrats—that wave elections can beat
back gerrymanders. “My hope would be that there would be a level of
sophistication there to look at what happened in Virginia and understand
what really occurred, then to put it in context,” Holder said.

A big win provided new, if not unwelcome, challenges. “There’s another
layer now to this job,” Holder said. “Democrats need to understand that
this happened in spite of gerrymandered districts. I suspect the other
side might point to Virginia and argue, ‘This shows that the whole
question of gerrymandering is not a legitimate concern.’ And, in fact,
it is. We can’t lose focus based on one night.”